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If Trump declares a state of emergency, he might actually cause one

By Andrea Pitzer

Andrea Pitzer is the author of "One Long Night: A Global History of Concentration Camps."

January 8

President Trump recently announced that he could “call a national emergency” to build a wall on the border with Mexico. Despite his assertions to the contrary, no national security crisis exists at the border. Rep. Adam Smith (D-Wash.) has indicated that the president might very well be able to use his powers to build a wall. But even if Trump fails to deliver one more mile of poured concrete or steel slats with his ploy, the country would face significant harm from his imaginary emergency. Indeed, if he continues down this path, he may well create a real national emergency that will eclipse his fake one.

Writing a history of concentration camps around the globe, I’ve spent several years looking at how leaders, revolutionaries and military juntas have used “states of exception” — situations in which ordinary laws are deferred or no longer apply. The most notorious example played out between the world wars: Before Adolf Hitler was appointed German chancellor in 1933, Article 48 of the Weimar constitution was invoked more than 100 times, allowing the president to override legislative authority. After his appointment, Nazi leadership employed this extraordinary measure more aggressively to cement Hitler’s use of dictatorial power for more than a decade.

But as philosopher Giorgio Agamben noted in his writing on the topic, states of exception weren’t just for Nazis. Article 23 of Argentina’s constitution allowed for the suspension of constitutional guarantees in the event of domestic disorder. When generals seized power there in 1976, they made intricate, exhaustive use of the article to pervert the legal process. In Chile, a coup on Sept. 11, 1973, institutionalized extrajudicial governance, and the resulting state of emergency remained in place for 15 years.

More recently, Myanmar’s fledgling democracy declared a state of emergency over violence in the western state of Rakhine in 2012. The government imposed emergency powers to segregate the Rohingya Muslim population, isolating it behind checkpoints that helped lay the groundwork for ethnic cleansing.

Again and again, when democracies are destabilized, declaring a state of emergency is the linchpin of the process. As Supreme Court Justice Robert Jackson noted in 1952, emergency powers “tend to kindle emergencies."

The United States has its own history to consider. In December 1941, President Franklin D. Roosevelt put Hawaii under martial law in the wake of the attack on Pearl Harbor. Early the following year, he signed Executive Order 9066, which led to the internment of about 120,000 Japanese Americans, most of whom were U.S. citizens. According to the popular understanding, the United States was frightened into violations of its own ideals, but that idea is false. Francis Biddle, the attorney general at the time, as well as U.S. naval intelligence and even J. Edgar Hoover at the FBI, understood that mass internment was unnecessary. But the power of the executive, in this case a president deferring to the military, overruled the advice of key officials. The Supreme Court backed the president, denying justice to tens of thousands of detainees.

States of emergency don’t always require war. The McCarran Internal Security Act, on the books from 1950 until 1971, authorized the president to declare an internal emergency and detain suspected subversives in internment camps. President Harry S. Truman rejected the act’s extraordinary powers, saying they made a “mockery of the Bill of Rights” and were a “long step toward totalitarianism.” A defiant Cold War Congress passed the legislation over his veto.

After Congress defanged the most expansive of these detention powers in 1971, the Senate Committee on Government Operations was dismayed to find that several states of emergency were already in place in the United States — and some of them had been for decades. Because they had never been canceled, these held out the possibility for sweeping extrajudicial actions by any sitting president.

In 1976, Congress passed the National Emergencies Act in an attempt to clear up this danger by defining executive authority more clearly and subjecting emergencies to congressional renewal. Instead, the act served to institutionalize presidential authority over emergencies, with Congress exercising only a whisper of its legally mandated oversight once in the past 42 years. Dozens of national emergencies remain open and in place, weakening the system and setting it up for abuse.

Two key differences make Trump’s plan particularly risky. The first is that no actual emergency exists — no equivalent to Pearl Harbor, 9/11 or even economic collapse. Instead, Trump threatens an emergency to punish another branch of the government for constitutionally exercising its authority.

The second difference relates more directly to the president himself. U.S. courts have often left space for presidents to respond quickly to events threatening the country’s stability, with the assumption that the executive branch is considering all the available intelligence and will have the most informed perspective, a premise that simply does not apply to Trump.

Totalitarianism rises out of a process, not a single event. Declaring a state of exception in response to a political impasse would be a big step toward degrading an already vulnerable system. A fake emergency could trigger a real catastrophe — one that a split Congress would be unlikely to resolve and that a Supreme Court sympathetic to an imperial presidency might even worsen. We have more than a century of precedents at home and abroad to demonstrate all the ways things could go wrong.